Also known as:clear and convincing evidence · clear & convincing · C&C standard
Written by attorneys · grounded in primary & secondary sources — see below
A standard of proof requiring evidence that makes the existence of a fact highly probable. The standard lies between a preponderance of the evidence and proof beyond a reasonable doubt.
Sources & Authorities
How it applies
Common Examples
6
Victim Attendance Ruling
After a shooting, the prosecutor notifies victim Carlos Castillo of the upcoming public trial. The defense moves to exclude Castillo from the courtroom during other witness testimony. The court finds that the prosecution has not shown by clear and convincing evidence that Castillo's testimony would be materially altered by hearing other witnesses and therefore denies the motion.
Will Revocation Dispute
Testator Christine Castro executes a revocation of her 2015 will after hearing a false rumor that her daughter has lost her driver's license. The daughter later proves by clear and convincing evidence that the rumor was false and that the revocation rested on that mistaken belief. The court holds the revocation ineffective and admits the 2015 will to probate.
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Cases
Statutes
Federal Rules
Uniform Acts
Model Codes
Restatements
Casebooks
Hornbooks
Defamation Actual Malice
Public official Chloe Chen sues a newspaper for publishing a false story about her official conduct. At trial Chen introduces evidence that the reporter knew key facts were false yet published anyway. The jury finds by clear and convincing evidence that the publication was made with actual malice and awards damages.
120-Hour Survival Claim
Decedent Caleb Chang and his brother die in the same accident. The brother's estate offers hospital records showing vital signs persisted for several hours. The court rules that the records do not constitute clear and convincing evidence of survival by 120 hours and therefore deems the brother to have predeceased the decedent.
Oral Trust Enforcement
Settlor Catherine Carter orally directs that certain funds be held in trust for her niece. After Carter's death the niece seeks enforcement. The court requires the niece to prove the trust's creation and terms by clear and convincing evidence and, finding the evidence sufficient, enforces the oral trust.
Document Reformation
Donor Charles Cunningham executes a deed that mistakenly names the wrong parcel. The intended grantee presents clear and convincing evidence of the drafting error and of the donor's true intention. The court reforms the deed to reflect the donor's actual intent.
Common questions
Frequently Asked
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How does clear and convincing proof differ from a preponderance of the evidence?+
Clear and convincing proof requires the factfinder to conclude that the fact is highly probable. A preponderance standard requires only that the fact is more likely than not.
Supporting sources
In which constitutional contexts is clear and convincing evidence required?+
The standard applies when a public official or public figure sues for defamation and must prove actual malice. It also governs termination of parental rights and certain due-process challenges to the burden of proving incompetence.
Supporting sources
When may a court reform an unambiguous donative document?+
Reformation is permitted when clear and convincing evidence shows both that a mistake of fact or law affected specific terms and what the donor's true intention was.
Supporting sources
What must a proponent show to enforce an oral trust?+
The creation of the trust and its terms must be established by clear and convincing evidence unless another statute requires a writing.
Supporting sources
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)Torts
…After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and convincing evidence that respondent had acted with "actual malice" as defined by New York Times . There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made…